Friday, December 05, 2014

Ferguson and the public's right to a open trial

Dahlia Lithwick and Sonja West make a good point in Shadow TrialSlate 11/26/2014: St. Louis County prosecutor Robert McCulloch (a Democrat!) handling of the Darren Wilson grand jury over his killing of Michael Brown denied the public its right to a fair and open trial in this case. "It violated our collective public right to an open criminal justice system," they write:

This right of open trials belongs not just to the accused but to all of us. It is, the Supreme Court said in the 1986 case Press Enterprise v. Superior Court, "a shared right of the accused and the public, the common concern being the assurance of fairness." And while those accused of crimes have a constitutional right to a "speedy and open trial," they do not, the court has said, have a right to a private trial.

In discussing the history and need for open trials roughly three decades ago, it was as if the court were imagining this week’s situation in Ferguson rather specifically. The community at large has a massive stake in the criminal justice process, the court said. Whether it is to make sure an innocent person is not imprisoned or a guilty one is not allowed to walk free, "the conduct of the trial is preeminently a matter of public interest." Think about the closed doors in Ferguson these past months as you reflect on what Chief Justice Warren Burger famously explained: "When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion."

And they conclude:

In the end, we all got to bear witness not to a fair and open trial, but to parts of it that do not add up to openness, fairness, or justice. We cannot believe in the fairness of a process we cannot see, and we should not be led to believe in the fairness of a process because a prosecutor’s office asserts that we have seen all we need to.

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Johann Gottfried von Herder (1744–1803)

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